But does it work?

Introduction

Almost 30 years after workplace safety regulators decided to encourage a select number of companies to police themselves, the basic question – does it work? – remains unanswered.

Supporters can’t prove that a softer, voluntary approach is more effective at making workplaces safer. Some critics suspect the concept is sound — but needs a serious course correction. Workplace safety regulators, meanwhile, still haven’t done a thorough study of the subject — though government auditors recommended they do it seven years ago.

The Government Accountability Office in 2004, while noting some anecdotal evidence for the Voluntary Protection Programs’ effectiveness, urged a comprehensive evaluation before expanding to more workplaces. OSHA commissioned a study, but not a good one; the GAO later determined it asked the wrong questions, and was incomplete, “unreliable” and “flawed.”

The agency has made no attempts to redo the study, and it says it has no plans to do so.

Supporters make the case for VPP by pointing to injury and illness rates that are, on average, more than 50 percent lower for VPP workplaces than for other sites in the same industry. But that, too, the GAO found problematic; in 2009, the investigatory arm of Congress concluded that such “rates may not be the best measure of performance.” At more than a third of the sites the GAO examined, there were discrepancies between the site’s self-reported and verified rates.

The GAO also found that “some employees said that the injury and illness rates requirements of the VPP are used as a tool by management to pressure workers not to report injuries and illnesses.” Critics contend that injury and illness rates can easily be manipulated and that these rates alone may not offer a complete picture of safety performance at a site.

Among critics, concerns persist about “cosmetic compliance” — the suspicion that some companies in VPP may just be good at preparing paperwork and giving the appearance of adhering to safety standards. Wade Smith, a former safety official for some of the nation’s largest construction contractors who now works for a consulting firm, said contractors in VPP are no safer than those that aren’t; they’re just better at looking like they’re safe. “They do their little song and dance in front of OSHA,” Smith said. “It’s just paperwork; that’s all it is.”

In a few of the case files reviewed by iWatch News detailing investigations of accidents at VPP sites, OSHA inspectors found that companies’ written policies — those that helped it qualify for VPP — were not being put into practice.

After an explosion at Tropicana’s Bradenton plant, for example, OSHA found that the company’s program for managing the use of hazardous substances “was not fully implemented.” After a chemical spill at Bayer’s Baytown plant, OSHA found that the company hadn’t followed its written procedures, exposing workers to a toxic substance. And after a death at the Tobyhanna Army Depot, OSHA found that managers knew a written procedure for working on pressurized tanks — like the one whose lid blew off and killed a worker — was not being followed. [Read more about the incidents and what iWatch News found here]

Another concern — raised in the GAO’s 2009 report and echoed by some in interviews with iWatch News — is that, after getting approved into VPP, sites may lose focus on maintaining safety standards. At ConocoPhillips’ oil refinery in Ponca City, Okla., for example, some workers became disillusioned with VPP, said Jason Smith, a maintenance worker and 20-year employee at the site who is also a representative with the local union.

In July 2003 — seven months after the refinery earned Merit status — a flash fire killed one worker and injured another. OSHA issued a serious violation but soon reapproved the site’s VPP status. The United Steelworkers, which represents workers at the refinery, eventually withdrew support for VPP participation; under the rules, unions must support membership. So the company left the program in 2007.

Despite making improvements, said Smith, ”once they got the flag, it went back to being the same combative atmosphere we had before. … At some point, you say, why are we going to be part of a program with no teeth run by an agency with no teeth with a company that just wants to fly the flag and not actually do anything?”

ConocoPhillips did not respond to repeated interview requests.

Many union officials interviewed by iWatch News expressed a similar sentiment: VPP can be a good thing, sometimes improving safety and relations between labor and management, but not when there’s pressure to expand the program and insufficient oversight to guard against unqualified workplaces getting in. Some critics like the idea of VPP, just not the execution.

“I think anybody in health and safety is in favor of the concept,” said Darrell Hornback, health and safety director for the International Chemical Workers Union Council. Corey Thompson, top health and safety official at the American Postal Workers Union, said that, although the program has shortcomings, including a weak system for monitoring participants, “Any program that encourages safety is a good thing.”

New York University law professor Cynthia Estlund, who has studied programs like VPP, argues in a recent book that “regulated self-regulation” programs are here to stay and should be embraced. Although there are vulnerabilities in VPP, she said, it can work under the right circumstances. “One way you ensure against cosmetic compliance is to ensure that no company is insulated from scrutiny,” she said.

That means taking tough action at VPP sites where problems occur — a point echoed by other experts. “What we see in the literature is these programs tip very easily into non-enforcement; they’re so cooperative that they don’t bother to balance cooperation and enforcement,” said Sidney Shapiro, an associate dean at Wake Forest University’s law school and a member of the board of directors at the Center for Progressive Reform. “It certainly is one arrow in OSHA’s quiver, but at times the agency has made it the agency’s whole approach.”